Navigation Co. 4 Rawle, 9; Everett v. Tunnel Co. 23 Cal. 225; Hoffman v. Water Co. 10 Cal. 413; Wolf v. Water Co. Id. 541; Lapham v. Curtis, 5 Vt. 371; Higgins v. Canal Co. 3 Har. (Del.) 411; Canal Co. v. Ryerson, 27 N. J. Law 457; Tenney v. Ditch Co. 7 Cal. 335; Richardson v. Kier, 34 Cal. 63; Shrewsbury v. Smith, 12 Cush, 177, etc.; Hannaher v. St. Paul M. & M. R. Co. 5 Dak. 22-23; Southern Ry. Co. v. Plott, (Ala.) 31 Sou. 33; Price v. Oregon R. Co. (Ore.) 83 Pac. 843.
“A person building a fence and gate across a stream and constructing culverts therein is not liable for the overflow of water caused by the breaking of a reservoir or dam over which he had no control, or by an unprecedented downpour of rain precipitating into the stream a flood not reasonably anticipated.” American Locomotive Co. et al v. Hoffman, (Va.) 54 S. E. 25; Brown v. C. B. & Q. Ry. Co. (8th Cir.) 195 Fed. 1007; Eagan v. Central Vermont Ry. Co. (Vt.) 69 Atl. 732.
“The rule of law in such cases is that defendant is only required to take precautions against ordinary storms which occur in the vicinity; and if the damage would have occurred by the act of God, notwithstanding the obstruction, even if there were negligence on the part of the defendant, damages cannot-be recovered.” Kansas City P. & G. R. Co. v. Williams, (Ind. Ry.) 58 S. W. 570, 571; Ohio & M. Ry. Co. v. Thullman, (Ill.) 32 N. E. 529; L. & N. Ry. Co. v. Conn. 179 S. W. 195.
Under the settled law in this state, if the loss is caused by joint wrong of the parties, or on account of reasons for which defendant is not responsible all the damages cannot be recovered from the one defendant. Boulger v. N. P. Ry. Co. 171 N. W. 632, (N. D.); McDonough v. Rus- sell-Miller Milling Co.; Meehan v. G. N. Ry. Co. 13 N. D. 443, tor N. W. 183; Balding v. Andrews & Gage, 12 N. D. 267; 96 N. W. 305.
T. F. Murtha, for respondent.
“Tf reasonable care and foresight have been exercised in construction of a railroad, the railroad company cannot be held liable, but if there was negligence in the construction of the bridge, embankment, or other work which contributed to the injury, it is no defense that the flood was unexampled or overwhelming.” Vyse v. Ry. (Ia.) 101 N. W. 736.
“A plaintiff is not bound to exclude the possibility that the accident complained of might have happened in some other way than that contended for by him. He is merely required to satisfy the jury by a fair preponderance of the evidence of the truth of his contention.” Reichert v. N.
